Search Alternative Family Law

Links

Parental Orders after Surrogacy

The application for a parental order after surrogacy is regulated by very strict conditions and the judge only has a discretion on some of them.

Often the surrogacy agreement the intended parents entered into is an obstacle to apply for the parental order. It is therefore advisable for the intended parents to instruct an expert solicitor in England even before they sign the final version of the surrogacy agreement. This way they can obtain advice on whether any clauses in the agreement would provide a problem. While English solicitors probably cannot advise on arranging the surrogacy, they can at any time advise on the later parental order application. With the benefit of this advice you should then be able to renegotiate yourself any clauses which may cause a problem later on.

The Conditions for a Parental Order Application

The child was born to a surrogate as a result of placing into her either an embryo or sperm and eggs or her artificial insemination, in other words not following intercourse.

The applicants for the parental order are husband and wife, civil partners or other opposite-sex or same-sex couples.

The genetic material of one of the intended parents has been used to create the embryo. The court may require a DNA test to prove this.

The application is made within 6 months of the date of the birth. This time limit cannot be extended.

The child lives with the applicants at the time of the application and at the time when the order is made.

At the time of application and the time the order is made, either applicant (or both) are domiciled in a part of the UK (England and Wales, Scotland or Northern Ireland) or the Channel Islands or the Isle of Man.

Both applicants are at least 18 years old.

The surrogate and her husband or civil partner, if there is one, (as the legal father or “the other parent” of the child) have to have consented and they must give their consent at least 6 weeks after the birth to give them a cooling-off period.

The court must be satisfied that no money or other benefit, other than “expenses reasonably incurred” has been given or received by the applicants for:

making the order;

the surrogate’s or her husband’s or civil partner’s agreement to the parental order;

the handing over of the child;

the making of any arrangements with a view of making the parental order.

However, the court can authorise a payment retrospectively and may do so under certain circumstances.

Reasonable Expenses

Of course the amounts that have actually been paid to surrogates have increased over the years with inflation etc. and especially if the surrogate lives in a Western country of the industrialised world, they have in several cases been above what can be regarded as reasonable expenses in England. Even in Southern and Eastern countries they are probably sometimes more than what are reasonable expenses, but because they are not so much by comparison to UK costs of living that this has probably been overlooked in quite a few cases.

However, the most recent case law makes is quite clear that the court would authorise payments retrospectively if they are not disproportionate to reasonable expenses.

Welfare of the Child

The other considerations which the court has to take into account are the welfare criteria from the Children Act and, because it is compared to adoption, not just whether making the order would be in the best interests of the child during the child’s minority, but for the lifetime of the child. Thus, even if there are other orders the court could make to achieve that both intended parents get parental responsibility while the child is under 18 (for example, by way of a joint residence order), a parental order has the added benefit that it actually creates a legal kinship for the rest of the life of everyone involved and beyond. Since, provided there are no extraneous circumstances, there is no question about the child growing up with anyone else, in practice it is difficult to see why the court should not make a parental order and retrospectively authorise a payment which goes beyond reasonable expenses as this is almost always in the child’s interest.

“The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order.”

There are only a handful of reported cases on this and no case law from the Court of Appeal. The application has to be started in the Family Proceedings Court, which is the Magistrates Court, however, recent case law from the High Court says that international cases should be transferred to the High Court. If an application was rejected an appeal would be to the Court of Appeal. The fact that there are no reported Court of Appeal cases, is a good indication that cases are rarely or have never been rejected (other than maybe where the parents clearly failed to meet one of the conditions, such as domicile).

Procedure

The application is made in the Family Proceedings Court and there is a short form for this. It must be made within 6 months from the birth. There is no discretion for the court to extend the 6 months time limit.

The court will then usually immediately arrange for an officer from CAFCASS to prepare a report. They are called parental order reporters for this purpose. The reporter would visit you at home and talk to both of you. Their task is to report to the court on whether the conditions set out above are met and also to see that it is in the child’s welfare interest to make the order. The time this takes will depend on how busy the CAFCASS officers in the local area are and it could take anything from 3 to 6 months. This investigation is a lot less intrusive than the investigation the local authority would make on an adoption, because the remit is much more focused and CAFCASS usually prepare reports in matters of questions of how much time the child spends after the parents have split up or where the children should live, which is a lot more limited than the reports that social services normally do when they assess parents who are incapable of looking after their children.

Another way to make life easier for the CAFCASS reporter and to ensure that the case gets off on the right footing is to prepare very detailed statements for both the intended parents and the surrogate (and her husband or civil partner, if she has one) at the beginning, before issuing the application. This means that the CAFCASS reporter will read them before undertaking any work themselves. This means instructing an expert solicitor early to ensure that the statements are clear and comprehensive.

Alternative Family Law

Disclaimer

This is an outline of the law, practice and procedure in England and Wales. It
should not be taken as specific advice. All families and couples are
different. The law may have changed since this was written and we therefore
accept no liability for inaccuracies. Where examples are given, your
personal circumstances may vary slightly, but the difference may be significant
for the outcome of the legal process. Contact
us for specific advice
on your own circumstances.